“The New Normal” and Reproductive Technology and the Law

Inspired in part by attending the “Baby Markets Roundtable” (an annual gathering of reproductive technology and the law scholars) this week at Indiana Bloomington, I wanted to share a few thoughts on the new NBC television show The New Normal. The series is a sitcom that follows the lives of a gay male couple (David and Bryan) who decide to employ a surrogate (Goldie), who herself has a young child through a prior relationship (Shania). The last cast member that is part of the family is the Goldie’s fairly right-wing grandmother known as “Nana.”

First the good: This is one of the few portrayals of surrogacy on TV, period. With a few exceptions, usually surrogacy comes in as a plot-of-the-week on lawyer shows when something has gone wrong. Here is one of the few positive, normalizing, portrayals of surrogacy.

Now the not-so-good:

The show glosses over or trivializes most of the major issues in reproductive technology, law, and ethics. In the first episode — it happens very quickly so hard to know exactly what happened — David and Bryan apparently select an egg donor (or probably seller) via an online web portal and choose the one who looks like Gwyneth Paltrow (their words) for that reason. No discussion of the sale of eggs, eugenic impulses, the interests, rights, etc of the egg seller who remains totally outside the rest of the series. There is a funny moment when Nana mistakenly thinks that the egg donor is David’s black assistant Nene, but is assured “Don’t worry these eggs are poached.” No discussion of the racial dynamics of the ART market and some of its potentially problematic elements, as Dov Fox has discussed among others. Nor is there any discussion of the difficulties in affording reproductive technology, or the choice to use technology rather than adopt, both issues on which I have written before. Where insurance covers IVF, same-sex couples are often excluded, the morality of which I have discussed in prior work. Gestational surrogacy, the kind used here (an egg donor with the surrogate acting only as carrier not genetic mother) adds significant additional costs. David and Bryan are a stereotypically rich and white and fabulous gay couple, with room in their beautiful house to offer their surrogate and her daughter if she wants it. Besides for supporting stereotypes that are often inaccurate for many gay couples, the show misses an opportunity to examine who does and does not get to access reproductive technologies.

By the first episode’s end, Goldie is pregnant. There is no discussion of her rights and interests as a gestational surrogate. No counseling. No discussion of the contractual terms. She explains she is doing it for money — she is a waitress with a child she is raising as a single mother trying to make a new start in life — but there is no discussion of exploitation or the like here. Instead, throughout she is portrayed as cheery and a member of the new family that is being formed, not the domestic worker kept at arm’s length that is true in some surrogacy arrangements.

Subsequent episodes have gotten a little better, but not much. David and Bryan are heavily heavily involved in Goldie and Shania’s lives, in a way that is amusing but in real life might strike us as more sinister. She briefly moves in with them, which is portrayed as a charitable act on their part, but may seem more like monitoring and control. In another episode the couple chides Goldie for eating fast food burgers, which it turns out one of the men sneaks in when his partner is away too. In the real world, many of the contractual attempts to control the behavior of surrogates during pregnancy (many of which are probably unenforceable) strike us as quite threatening impingements on the surrogate’s right to live her life.

In another episode one member of the couple is forbidden by the other from buying new baby clothes until the fetus passes a series of health tests. There is no discussion of the propriety of prenatal testing or the seeming perfectionist tendencies of the couple. Instead the pregnant negative (pun intended) is that of course the couple should do these tests, the surrogate should accede, and that terminating the pregnancy would be appropriate if they find something “wrong.”

Yes, I know, it is a sitcom. It is meant to be funny, not a teaching tool I can use in my course. Still, given that this is one of the very few significant depictions of surrogacy on TV, it is my hope that in our discussion of the show if not the show itself we can reveal the fraught and fascinating territory the show is moving through.

I. Glenn Cohen

I. Glenn Cohen is the James A. Attwood and Leslie Williams Professor of Law at Harvard Law School and current Faculty Director of the Petrie-Flom Center. A member of the inaugural cohort of Petrie-Flom Academic Fellows, Glenn was appointed to the Harvard Law School faculty in 2008. Glenn is one of the world's leading experts on the intersection of bioethics (sometimes also called "medical ethics") and the law, as well as health law. He also teaches civil procedure. From Seoul to Krakow to Vancouver, Glenn has spoken at legal, medical, and industry conferences around the world and his work has appeared in or been covered on PBS, NPR, ABC, CNN, MSNBC, Mother Jones, the New York Times, the New Republic, the Boston Globe, and several other media venues. He was the youngest professor on the faculty at Harvard Law School (tenured or untenured) both when he joined the faculty in 2008 (at age 29) and when he was tenured as a full professor in 2013 (at age 34).

0 thoughts to ““The New Normal” and Reproductive Technology and the Law”

  1. What worries me more is where the writers will take the plot moving forward. (This assumes the show escapes the sweeps chopping block – sometimes the dialogue is so contrived it sets my teeth on edge.) Imagine the comedic hijinks if Goldie decides to “keep” that baby and raise her in a three-parent household (a girl no doubt – more opportunity for laughs watching the gay days fumbling with their daughter’s female parts). California Governor Jerry Brown just vetoed a bill that would have allowed judges to recognize more than two legal parents if doing so “serves the best interests of the child” (S.B. 1476 – Leno). In his veto message, Gov. Brown lamented the unintended consequences of such a law. If NBC greenlights the glorification of this three-part harmony, the bill may make its way back to Sacramento much sooner than I would like.

  2. Thanks Judy. Fascinating that he vetoed the multi-parent bill. Do you have a sense of the politics behind it? Perhaps we can induce you to blog a bit about your thoughts on the bill too…

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